Case 5:13-cv-04119-KHV-JPO Document 43 Filed 05/06/14 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS COPE (a.k.a. CITIZENS FOR OBJECTIVE, ) PUBLIC EDUCATION, INC.), et al., ) ) Plaintiffs, ) v. ) Case. No. 13-CV-4119-KHV- JPO ) KANSAS STATE BOARD OF ) EDUCATION, et al., ) ) Defendants. ) PLAINTIFFS' MEMORANDUM IN SUPPORT OF THEIR D. KAN. RULE 15.1(A) MOTION TO FILE A SURREPLY TO DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO DISMISS COME NOW, all Plaintiffs, by and through their undersigned counsel, and pursuant to D. Kan. Rule 15.1(a), suggest to the Court as follows: 1. Concise Statement of the Leave sought: The attached Plaintiffs Surreply to Defendants' Reply in Support of their Motion to Dismiss is necessary and will be helpful to the Court in Ruling on the Defendants Motion to Dismiss. Though surreplies are only allowed with leave of court, a court will grant leave to file a surreply where a movant improperly raises new arguments in a reply. King v. Knoll, 399 F.Supp.2d 1169, 1173-74 (D.Kan.2005), quoting McShares, Inc. v. Barry, 979 F.Supp. 1338, 1341 (D.Kan.1997) (quoting E.E.O.C. v. Int'l Paper Co., No. 91 2017, 1992 WL 370850, at *10 (D.Kan. Oct.28, 1992)). Courts liberally construe motions for leave to file a surreply in favor of granting them. See, e.g., King, at 1174; Robinson v. Farmers Services L.L.C., No. 10-cv-02244, 2010 WL 1
Case 5:13-cv-04119-KHV-JPO Document 43 Filed 05/06/14 Page 2 of 5 4067180 (D.Kan. Oct. 15, 2010); Henderson v. International Union, No. 00-2575, 2003 WL 1607798, at *1-2 (D.Kan. Mar. 18, 2003). For example, in King, the court granted plaintiff leave to file its surreply when plaintiff argued that defendants reply improperly raised the issue of authentication of documents. King, 399 F.Supp.2d at 1174. Though the court found that defendant s reply actually argued that plaintiff failed to properly authenticate documents, and recognizing the defendant s new argument was not the usual type justifying a surreply, the court nevertheless liberally construed plaintiff s arguments and granted plaintiff s motion for leave to file a surreply. Id. In Robinson, the court acknowledged that the defendant did not raise a new argument in its reply. Nevertheless, the court construe s the plaintiff s pleadings liberally and will grant plaintiff s Motion for Leave to File a Surreply. Robinson, 2010 WL 4067180, at *2. In Henderson, the plaintiff filed motions to file a surreply to defendants separate motions for summary judgment. Henderson, 2003 WL 1607798, at *1. For plaintiff s first motion, the court noted that the essence of plaintiff s surreply was merely additional argument that summary judgment should be denied. Id. Though the court admitted it was already well aware of plaintiff s arguments, in an abundance of caution, the court granted plaintiff leave to file her surreply. Id. at *2. Likewise, for the second motion, although the court noted that plaintiff sought leave to file a surreply to respond to new arguments, but failed to identify the new arguments, and sought leave to clarify her evidentiary support, the court nonetheless liberally granted plaintiff the requested leave. Id. Here, Plaintiff s Surreply is necessary as it objects to the Defendants bringing into the record new issues and arguments in their Reply. Those issues are the meeting minutes of a June 11, 2013 Kansas Board of Education meeting (Defs. Reply (Doc. #41) at 8 and 14), a related 2
Case 5:13-cv-04119-KHV-JPO Document 43 Filed 05/06/14 Page 3 of 5 June 11, 2012 [sic] Kansas Board of Education Meeting Media Streaming video (Defs. Reply (Doc. #41) at 14). In addition, Defendants Reply specifically urges the Court to take judicial notice of a certain Report and Recommendation of the Next Generation Science Standards Review Committee ( R&R ). Defs. Reply (Doc. #41) at 14. Plaintiffs do not have access to the minutes, video and other materials, and therefore Plaintiffs have not had an opportunity to check them for accuracy and completeness due to the moratorium on discovery. The Surreply also identifies fundamentally important errors in Defendants' arguments. For example, the Defendants argument is based entirely on a refusal to accept the truth of the well plead factual allegations of the Complaint and no showing that any of those allegations are implausible. Assuming the truth of the Plaintiffs factual allegations, which this Court must, Defendants' motion lacks any factual or legal basis that would entitle it to have the Complaint summarily dismissed. Defendants' Reply also alleges in many instances that certain statements in the Policy belie the allegations in the Complaint. The problem is that the statements Defendants rely on are themselves alleged by the Complaint to be false or misleading. Since those allegations of deception must be taken to be true, the statements Defendants rely on for their motion must be assumed to be false or misleading. Given the assumed truth that the statements Defendants rely on are false, Defendants arguments amount to nothing more than discredited conjecture. Finally, Defendants Response raises the new argument that through Plaintiffs Response, Plaintiffs have changed their theory of injury from the theory they asserted in their Complaint. Defendants argue that the theory of injury indicates both a lack of standing and a failure to state a claim. If the theory of injury was revised by Plaintiffs in their Response, as newly argued by Defendants Reply, logically there has been no opportunity for opposition by Plaintiffs to 3
Case 5:13-cv-04119-KHV-JPO Document 43 Filed 05/06/14 Page 4 of 5 Defendants new argument. Therefore, Plaintiffs requested leave should be granted so that Plaintiffs have the fair opportunity to address Defendants new arguments. For the entirety of the foregoing reasons, Plaintiffs respectfully urge the Court to grant Plaintiffs' leave to file the attached Surreply to Defendants' Reply. 2. Attach the proposed pleading: The proposed PLAINTIFFS SURREPLY TO DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO DISMISS is attached hereto and incorporated by this reference as Exhibit A. 3. Compliance with Other Rules of D. Kan. Rule 7.1: Plaintiffs submit that their proposed PLAINTIFFS' SURREPLY TO DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO DISMISS is compliant with D. Kan. Rule 7.1 Accordingly, Plaintiffs request leave of Court to file their attached Exhibit A, Plaintiffs Surreply to Defendants Reply in Support of their Motion to Dismiss. Respectfully submitted, s/ Douglas J. Patterson Douglas J. Patterson, Esq. (KS # 17296) Kellie K. Warren, Esq. (KS #16733) Michelle W. Burns, Esq. (KS #21167) PROPERTY LAW FIRM, LLC 4630 W. 137th St., Suite 100 Leawood, Kansas 66224 913-663-1300 Telephone doug@propertylawfirm.com kellie@propertylawfirm.com michelle@propertylawfirm.com 4
Case 5:13-cv-04119-KHV-JPO Document 43 Filed 05/06/14 Page 5 of 5 s/ John H. Calvert John H. Calvert, Esq. (MO #20238) CALVERT LAW OFFICES 2300 Main St., Suite 900 Kansas City, MO 64108 816-797-2869 Telephone 816-448-3703 816-448-3101 Facsimile jcalvert@att.net s/ Kevin T. Snider Kevin T. Snider, Esq. (CALIF#170988) PACIFIC JUSTICE INSTITUTE P.O. Box 276600 Sacramento, California 95827-6600 (916) 857-6900 Telephone (916) 857-6902 Facsimile ksnider@pji.org ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE This is to certify that on this 6 th day of May, 2014, the above and foregoing document was electronically filed with the Clerk of the Court by using the CM/ECF system with notice electronically sent to: Jeffrey A. Chanay jeff.chanay@ksag.org Cheryl L. Whelan cwhelan@ksde.org Stephen O. Phillips steve.phillips@ksag.org ATTORNEYS FOR DEFENDANTS s/ Douglas J. Patterson Douglas J. Patterson 5
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